Masive v Okuk [1984] PNGLR 390 (30 November 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 390 - SCR No 3 of 1984; Kevin Masive v Iambakey Okuk 

[1984] PNGLR 390

SC283

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 3 OF 1984

IN THE MATTER OF A REFERENCE UNDER S. 18 OF THE CONSTITUTION IN CONNECTION WITH AN ELECTORAL PETITION

KEVIN MASIVE

V

IAMBAKEY OKUK

Waigani

Bredmeyer McDermott Amet JJ

11-13 June 1984

29 June 1984

6 July 1984

25 July 1984

26 September 1984

30 November 1984

PARLIAMENT - Elections - Disputed election petition - Residential qualifications - “Resided in electorate for period of five years at any time” - Real permanent physical residence required - Constructive evidence not sufficient - Five years need not be continuous - Constitution, s. 103(2).

Section 103(2) of the Constitution provides:

“(2)    A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time.”

Held

(1)      For the purposes of s. 103(2) the “period of five years at any time” need not be a continuous period of five years: it may be discontinuous or intermittent; it may be an aggregate of different periods of intermittent residence.

(2)      For the purposes of s. 103(2) the “residence” must be real permanent and physical residence; constructive residence will not satisfy the requirements of the section.

In re Moresby North East Parliamentary Election (No. 2), Goasa Damena v. Patterson Lowa [1977] P.N.G.L.R. 448 and Dixon Daduwe v. Joe Area [1979] P.N.G.L.R. 160, disapproved and not followed.

Cases Cited

Barlow v. Smith (1892) 9 T.L.R. 57.

Bond v. The Overseers of the Parish of St George, Hanover Square [1870] UKLawRpCP 69; (1870) L.R. 6 C.P. 312.

Dixon Daduwe v. Joe Area [1979] P.N.G.L.R. 160.

Durant v. Carter [1873] UKLawRpCP 71; (1873) L.R. 9 C.P. 261.

Ford v. Hart [1873] UKLawRpCP 73; (1873) L.R. 9 C.P. 273.

Ford v. Pye [1873] UKLawRpCP 72; (1873) L.R. 9 C.P. 269.

Fox v. Stirk and Bristol Electoral Registration Officer [1970] 2 Q.B. 463.

Levene v. Commissioners of Inland Revenue [1928] UKHL 1; [1928] A.C. 217.

Moresby North East Parliamentary Election (No. 2), In re; Goasa Damena v. Patterson Lowa [1977] P.N.G.L.R. 448.

Powell v. Guest (1864) 144 E.R. 367.

Tanner v. Carter (1885) 16 Q.B. 231.

Whithorn v. Thomas [1844] EngR 983; (1844) 7 Man. & G. 1; 135 E.R. 1.

Reference

This was a reference by Woods J. to the Supreme Court pursuant to s. 18(2) of the Constitution of three questions which are cited in the reasons for judgment of Bredmeyer J. hereunder.

Counsel

P. Donigi, for the petitioner.

D. Awaita, for the respondent.

J. Everingham, for the Electoral Commission.

Cur. adv. vult.

30 November 1984

BREDMEYER J: This is a reference under s. 18 of the Constitution made by Woods J. in the course of hearing an electoral petition. Mr Iambakey Okuk was elected to the seat of Unggai-Bena in the National Parliament in a by-election held in 1983. The petitioner has challenged the validity of the election claiming that Mr Okuk was not residentially qualified under s. 103(2) of the Constitution. That section reads as follows:

“103.   Qualifications for and disQualifications from membership.

...

(2)      A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time.”

The following questions have been referred to us by the trial judge:

“(1)    Do the words ‘... have resided in the electorate ... for a period of five (5) years at any time’ appearing in s. 103(2) of the Constitution mean:

(a)      five (5) years continuous period at any time; and/or

(b)      five (5) years composed of intermittent periods of physically residing in the electorate?

(2)      Is it open to find that the home that was available to the respondent and his family from 1967 to 1983 in the Unggai-Bena electorate and which was visited at regular intervals satisfies the requirement in s. 103(2) of ‘have resided in the electorate for a period of five (5) years at any time’?

(3)      In any election petition case involving the interpretation and application of s. 103(2) of the Constitution, after a prima facie case has been established by the petitioner, does the respondent have to prove to the satisfaction of the Court the pre-requisites to qualification as contained in s. 103(2)?”

We are required to give the words and expressions used in the Constitution their fair and liberal meaning (Sch. 1.5). We are also entitled to use the report of the Constitutional Planning Committee and the debates and votes on it as aids to interpretation.

I begin by trying to give the words used their fair and liberal meaning. The key words are “have resided”. The following meanings are given in the Shorter Oxford Dictionary:

reside (v)

—       to dwell permanently or for a considerable time

—       to have one’s settled or usual abode

—       to live in or at a particular place

residence (n)

—       to have one’s usual dwelling place or abode

—       the place where a person resides, his dwelling place

—       a dwelling, especially, one of a superior kind, a mansion.

To reside in a town is to live permanently or for a considerable time there. All three dictionary meanings of the words “reside” emphasise the permanence of residency. I reside in Port Moresby although in connection with my work I may visit other towns. If I am on a work trip, say to Goroka, it is usual to say “I am staying in Goroka (or visiting Goroka) for a week or two”. It is not usual or correct English to say “I am residing in Goroka” or even, “I am living in Goroka”.

The two words “reside” and “residence” are not synonymous. They are synonymous when I say “I reside in my Port Moresby residence”. But they need not be. A person may reside in Port Moresby but not have a particular house in Port Moresby that is his residence. That is, he may live permanently in Port Moresby although he does not own or lease a house there. He may be living with wantoks, moving from house to house. Similarly, a man may reside in one place but own a residence elsewhere. For example a man may live permanently in Port Moresby but own a house in Lae which is rented out. He may call his rental house in Lae a residence either because it is a grand house or he is prone to a little exaggeration. But if he lives permanently in Port Moresby, and not in Lae, then he resides in Port Moresby but owns a residence in Lae. He does not reside in Lae.

I have said that a person resides where he permanently lives. Whether a person lives permanently in an electorate or not depends on his occupation, mode of living and personal circumstances. It does not depend on a meticulous counting of the number of nights he sleeps in a certain place. For example a salesman based in Port Moresby, with a house and family in Port Moresby, may travel around the country and be away from home various periods totalling six months a year. It can nevertheless fairly be said that he resides in Port Moresby because his permanent settled abode is in Port Moresby. A seaman based in Port Moresby, may be overseas on a vessel nine months of the year and then come home for three months shore leave; but similarly it can fairly be said that he resides in Port Moresby. A Minister in the National Government who spends a lot of time in Port Moresby in connection with his Ministerial and Parliamentary duties, and a lot of time in his home electorate, can be fairly said to reside in both places. Contrast the Minister in this example with another member of Parliament who, upon election, moves to Port Moresby with his family, and never visits his electorate. He resides in Port Moresby solely. A man who has two wives and who is wealthy enough to establish them in two houses and who spends an almost equal number of days living at one house and then at the other, can truly be said to reside in both houses. If the houses were in different electorates he could become residentially qualified in both electorates. The television personality David Frost is in the Guinness Book of Records as being the passenger with the most trans-Atlantic flights. He was commuting between London and New York several times a week hosting television shows in each city. It can truly be said that he resided in both New York and London.

The discussion on residential qualifications in the Constitutional Planning Committee’s report at 6/3 is as follows:

“Residence

15.     The Commission of Inquiry did propose a number of changes, however, and the Electoral Ordinance was amended in 1971 largely in accordance with its recommendations. There was some tightening of residential qualifications. Previously a person otherwise qualified could be nominated for any electorate in which he had lived for one year. It was now required that he stand for election only in an electorate in which he had his “real place of living” or in which he had at some time lived continuously for five years. The intention of the latter qualification was to allow a person to represent the people of an area with which he had ‘real home ties’ even though he might have lived elsewhere for some time — by reason of his employment, for example. We believe that the grounds for this qualification will continue to have relevance for Papua New Guineans in the foreseeable future and recommend, therefore, that it be retained.

16.     The alternative qualification provided that a person could be nominated as a candidate in the electorate in which he had had his ‘real place of living’ for a period of at least six months. This is the same as the qualifying period for electors. In other words, under the present law, a person may be nominated for the electorate in which he is entitled to be enrolled as an elector. We share the view, however, commonly held among our people, that a distinction should be made between the qualifications for electors and candidates: that, while six months’ residence may be appropriate for the purpose of voting, a longer period of residence is desirable for a person to be qualified to stand for election in a particular electorate — in particular, for him to get to know the area and its people. We submit that a period of two years would be more appropriate.

17.     Our recommendation for residential qualifications for election to the National Parliament is therefore two years’ continuous residence in an electorate immediately prior to nomination or a period of five years at some previous time.”

The recommendations contained later in the report at 6/20 are as follows:

“Qualifications for membership

3.       To be qualified to be elected to the National Parliament, a person shall:

(a)      be a citizen;

(b)      be 23 years of age or over; and

(c)      have resided in the electorate for which he nominates for either 2 consecutive years immediately preceding his nomination, or five consecutive years at any time.”

These recommendations were not fully adopted. The age, for example, was changed to twenty-five years; a new way of qualification was added (being born in the electorate); the phrases “two consecutive years” and “five consecutive years at any time” were changed to “two continuous years” and “five years at any time”. My brother McDermott J. has quoted the words of the then Chief Minister in the Constituent Assembly when he moved the rewording of the C.P.C. recommendation.

Although we are entitled to use the C.P.C. Report and the debates thereon as aids to interpretation, and I have tried to do so, they do not dissuade me in any way from the interpretation I have come to from the fair and liberal construction of the words. The words used are few and are simple English words and in my view it is quite wrong to use the C.P.C. Report to give those words an extended, unlikely interpretation. For example it would be quite wrong, I consider, to take from the C.P.C. Report the phrase “real home ties” and graft it on to s. 103 to say that a nominee need not have resided in the electorate for two continuous years or five years provided that he has had “real home ties” with it for either of those periods. Section 103(2) uses plain, clear words and the plain meaning of those words is also the fair and liberal meaning and does not in any way conflict with the C.P.C. Report. Nor does that Report in my view require any extension to, or gloss upon, the plain clear, fair and liberal meaning.

Counsel for Mr Okuk relied firmly on the doctrine of constructive residence. It is a doctrine developed by the courts in England in connection with the residential qualifications of voters. It was accepted by Frost C.J. as applicable to s. 103 in In re Moresby North East Parliamentary Election (No. 2); Goasa Damena v. Patterson Lowa [1977] P.N.G.L.R. 448. The doctrine was accepted by Raine Dep. C.J. as applicable to the Constitution of Milne Bay Provincial Government in Dixon Daduwe v. Joe Area [1979] P.N.G.L.R. 160. The doctrine of constructive residence is that if a person has a dwelling or a sleeping apartment in an electorate, he is resident there no matter how long he has been away provided he has not debarred himself from the liberty of returning. He might debar himself from the liberty of returning by letting the house and thus no longer having the right to possession, or by abandoning his intention of returning. Frost C.J. thought that common law doctrine applicable and appropriate to the circumstances of Papua New Guinea and applied it to the facts of the case before him. In that case Mr Lowa was claiming two years continuous residence in the Moresby North East electorate. During that period he owned a house in the electorate; he had lived in that house for one week, the rest of the period it was let to tenants and he lived outside the electorate. There was no evidence as to the nature of the tenancy. Frost C.J. at 456 reasoned that even if it was let for the shortest period, say a weekly tenancy, Mr Lowa had debarred himself from the liberty of taking up residence for a period of at least one week, as one week’s notice would have to be given to the tenants, and that that was enough to break the continuous period of residence required under the Constitution.

“Constructive residence” means that a person is not really resident but because of certain reasons he is deemed to be resident or can be construed to be resident. It is a very artificial doctrine. It means that had Mr Lowa left his house vacant whilst he resided for those two years outside the electorate, he would have been residentially qualified. Under the doctrine it could be said that he constructively resided in the electorate for two years although he only spent one week physically living in the electorate. In my view the decision on the facts in Lowa’s case was correct but the reasoning was wrong. The simple and sufficient reason to allow the petition against Mr Lowa was to say that Mr Lowa had not resided in the electorate for a period of two years. He had only resided there for one week. To own a house in the electorate, whether it is leased out or locked up, without living in the electorate is not residing in the electorate within the meaning of s. 103.

With great respect to Frost C.J. I think he was plainly wrong in applying the doctrine of constructive residence to s. 103. He said it is English common law and it is applicable and appropriate to the circumstances of Papua New Guinea alluding to Sch. 2.2 of the Constitution. In my view the doctrine is contrary to s. 103(2) of the Constitution giving those words their fair and liberal meaning and there is no mention or hint of the doctrine in the C.P.C. Report. It is not necessary to look to Sch. 2.2 and the common law for further elaboration of the section. The plain words of s. 103 should not be added to or distorted by a common law doctrine. Likewise I consider that Raine Dep. C.J. was wrong in following Frost C.J. in upholding the doctrine of constructive residence in Dixon Daduwe’s case.

I have dwelt at length on the words “have resided” in s. 103(2). I now mention the word “continuous”. The section speaks of “a continuous period of two years immediately preceding his nomination”. The word is not used in the next phrase “or for a period of five years at any time”. Clearly the two years residence prior to nomination must be continuous but the five years residence at any time can be discontinuous. For example a public servant from the Central Province may have had a three year posting to Goroka, then postings to other towns, followed by a two year posting in Goroka. He would be eligible to stand for the Goroka seat under the five years qualification.

What can be said about absences during either qualifying period? I consider that absences need not necessarily affect the qualification periods. I consider it would be a most unfair and illiberal interpretation of the section to say that a person who went on a short holiday or to hospital outside the electorate broke the continuity of his two years residence, so that the two years had to start again from the date of his return; or that the period away had to be subtracted from a period of five years residence. Even a longer absence need not affect the continuity under either qualifying period because, as I have said above, it all depends on the person’s occupation, mode of living and personal circumstances. A pilot or a travelling salesman will be away a lot more than a clerk. It would be an unfair and illiberal interpretation to say that a pilot or a salesman could never qualify under the two years continuous category because his work required him to sleep out of the electorate on occasions. Likewise it would in my view be unfair and illiberal to require a pilot or a salesman seeking to stand for Parliament under the five years qualification to make a note of every day he sleeps away, and then subtract each of those days from the periods which make up the five years. It is a question of fact in each case whether an absence affects the continuity of two years continuous residence or the periods which make up five years discontinuous residence, or not.

I would answer the questions asked as follows:

(1)(a)  The five years period at any time mentioned in s. 103(2) need not be continuous. It can be discontinuous or intermittent.

(b)      Subject to what I have said above the residence required by s. 103(2) is real, permanent residence. It is not constructive residence.

(2)      This question which involves finding the facts relevant under the law and applying that law to the facts, is best answered by the trial judge.

(3)      This question does not require an answer. It is a matter for the trial judge to decide.

MCDERMOTT J: In the 1982 General Elections the respondent lost his Chimbu Regional seat which he had held since the 1972 General Election. He was born in the Chimbu Province and was thus qualified to stand for election: Constitution, s. 103(2); but, he was also involved in commercial enterprises there since 1968 and he had a house there. Since his election and because of his position at various times in different governments — in turn a Minister, backbencher, Leader of the Opposition and Deputy Prime Minister, he spent a considerable amount of time in the National Capital and had a house there as well.

After his defeat, he sought re-election in another province and foresaking his Chimbu ties claimed entitlement to stand for the seat of Unggai-Bena which happily fell vacant following a successful electoral challenge. His qualifications to stand in this Eastern Highlands seat stem from marriage — his wife for twelve years comes from Samogo village Bena. On the facts as found by the petition judge, his links to Bena appear tenuous. According to the Bena custom, a wife goes to join the husband’s people, indeed the wedding feast was at Nondugi in Chimbu. The remaining link with Bena was expressed as follows:

“From the time of his marriage to Karena in 1967 the respondent had a home and some land available for the use of himself and his family at Samogo village in the Bena area.

The respondent and his family have visited the home at Bena regularly over the years and in particular at Christmas each year and have regarded Bena as a home.”

With respect, this is unfortunate phrasing as the “home and land” there referred to has emerged in argument before this Court as being owned by his father-in-law. I consider this most relevant to the questions asked. As his Honour later said:

“The respondent’s wife has retained very strong links with her home village and people and the respondent has clearly adopted those links and ties. On the evidence a home has and is always available to the respondent in the Unggai-Bena area.”

The real question giving rise to the election petition which has led to this reference arises thus: Is Samogo village really Mr Okuk’s home, his residence, for electoral purposes — his residence for a continuous period of two years immediately preceding nomination — a precise period; or, has it been his residence for a period of five years at any time prior to nomination: see s. 103(2). As there is no evidence supporting the first requirement, cumulative periods of residence since 1967, adding up to five years residence in all, is relied upon to support his eligibility for nomination.

The first question concerns the meaning of the words “... have resided in the electorate ... for a period of five (5) years at any time”. Simply, is it a continuous or an aggregate period?

I consider the answer hinges on the meaning of “resided”. One has but to glance at a judicial dictionary to see multitudinous meanings given to this word, but all for differing purposes. Clearly, the meanings attributed to it in an electoral context are the most relevant ones. Meanings derived from Private International Law texts and sources can be quite misleading in this context and I do not propose to adopt analogous arguments.

The Reform Act, the Representation of the People Act 1832 (Imp.), gave rise to a line of cases which decided the meaning of “resided”. For the purpose of voter registration, it was a requirement that a person had to reside for a specific period in a defined area to qualify, for a borough. There is a similarity in these authorities with the constitutional provisions of this country.

The following passage from Elliot on Registration (2nd ed.), 204 was approved in Powell v. Guest (1864) 144 E.R. 367 and in Bond v. The Overseers of the Parish of St George Hanover Square [1870] UKLawRpCP 69; (1870) L.R. 6 C.P. 312:

“... in order to constitute residence a party must possess at the least a sleeping apartment, but that an uninterrupted abiding at such dwelling is not requisite.”

He continues:

“Absence no matter how long, if there be the liberty of returning at any time, and no abandonment of the intention to return whenever it may suit the party’s pleasure or convenience so to do, will not prevent a constructive legal residence. But, if he has debarred himself of the liberty of returning to such dwelling ... or has abandoned his intention of returning, he cannot any longer be said to have even a legal residence there.”

Erle J. said in the Tewkesbury case Whithorn v. Thomas [1844] EngR 983; (1844) 7 Man. & G. 1 at 10; [1844] EngR 983; 135 E.R. 1 at 4:

“I think that in the reform act the intention of the legislature was, that a party who obtained a vote by residing in a borough, should have some local interest there — referring to the ordinary meaning of the word residence, as conveying the idea of a home.”

Or, according to Lord Coleridge C.J. in Barlow v. Smith (1892) 9 T.L.R. 57 at 58:

“Residence ... under this enactment is different from occupation and means where the man lives and where he has his home. It has always been held that a man resides and has his home, and the old doctrine should be adhered to.”

These cases have been referred to again in more recent times, however, between them, there is a tax case where the word “residence” as used in the Income Tax Act 1918 was considered. In Levene v. Inland Revenue Commissioners [1928] UKHL 1; [1928] A.C. 217, the taxpayer had no fixed address either in the United Kingdom or abroad for five years, but spent five months each year in the United Kingdom. At 222 Cave V.C. observed:

“My Lords the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place’. No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but subject to that observation, it may be accepted as an accurate indication of the meaning of the word ‘reside’. In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure.”

This meaning was referred to in Fox v. Stirk and Bristol Electoral Registration Officer [1970] 2 Q.B. 463. The Representation of the People Act 1949 (Imp.) provided a qualifying date rather than a qualifying period of residence to give an elector entitlement to vote. The Court of Appeal was asked if a student in residence at University was a resident for enrolment purposes in the constituency containing the University. After preferring the ordinary meaning set out above Lord Denning M.R. said at 475:

“I would take into account, as the statute says, the general principles formerly applied and have regard to the purpose and other circumstances of his presence at or absence from the address. Hence I derive three principles. The first principle is that a man can have two residences. He can have a flat in London and a house in the country. He is resident in both. The second principle is that temporary presence at an address does not make a man resident there. A guest who comes for the weekend is not resident. A short-stay visitor is not resident. The third principle is that temporary absence does not deprive a person of his residence. If he happens to be away for a holiday or away for the weekend or in hospital, he does not lose his residence on that account.”

And Widgery L.J. added at 477:

“It is imperative to remember in this context that ‘residence’ implies a degree of permanence. In the words of the Oxford English Dictionary, it is concerned with something which will go on for a considerable time. Consequently, a person is not entitled to claim to be a resident at a given town merely because he pays a short, temporary visit. Some assumption of permanence, some degree of continuity, some expectation of continuity, is a vital factor which turns simple occupation into residence.”

That is the English view on residence.

I come now to the local cases. The petition In re Moresby North East Parliamentary Election (No. 2); Goasa Damena v. Patterson Lowa [1977] P.N.G.L.R. 448, was a challenge to Mr Lowa being residentially qualified to stand for election. He relied upon two years continuous residence. He had a house in the electorate but did not reside there — it was let to a tenant. All that could be relied upon was to argue a constructive residence. In Tanner v. Carter (1885) 16 Q.B. 231 Cave J. said at 237:

“Undoubtedly there have been cases, in which it has been held that there may be a constructive as distinct from an actual occupation of a dwelling-house. But when these cases are examined, it will be found that the person held to be constructively resident in a house was always entitled to return to it without requiring the consent of any other person.”

The development of a so called “constructive residence” doctrine is in many ways unfortunate because in my view you either have residence for electoral purposes or you do not. It is a matter of fact. Mr Everingham puts it nicely, constructive residence being the outer perimeter of residence. Frost C.J. cited the early authorities and said at 454:

“It is plain that constructive residence implies an available residence, from which the claimant has not debarred himself from the liberty of returning.”

But this does not take the matter much further as ultimately the case was decided against Mr Lowa on the facts — he “was in no way resident in the house” in the electorate. It is not doubted that a person can be resident for electoral purposes in more than one place but has to choose one for enrolment and nomination. One can well imagine this being the situation in this country. Indeed it seems Mr Okuk may well be qualified to stand on a residential basis for either Kundiawa or the area where he lives in Port Moresby but that is another matter.

That sort of situation arose in Dixon Daduwe v. Joe Area [1979] P.N.G.L.R. 160, but instead of treating the matter in the way I have suggested it was decided on the basis of a “constructive” residence. The petition resulted from the rejection of a nomination in October 1978. The petitioner claimed entitlement under s. 11(3)(a) of the Constitution of the Milne Bay Provincial Government which provides:

“(3)    A candidate for election to the Assembly must have lived in the area comprised in the electorate for which he intends to stand:

(a)      for the two consecutive years immediately before the closing date for nominations for the election in which he intends to stand.”

In following the Goasa Damena case, Raine Dep. C.J. after reviewing the facts which showed the petitioner’s ties with the village were maintained (it was across the electorate border from Cameron High to which he had been posted in February 1975), concluded at 168:

“In my opinion it is easy to apply the ‘constructive’ residence principle to the facts of this case, and many others in this country. In my opinion the home in his mother’s village was ‘available’; and the petitioner was not ‘debarred’ from it by reason of his employment. The dwelling was not an occasional boarding house. It was home. It is quite a different situation than that which arises when one lets one’s house. Were one to seek to re-enter without the lessee’s consent one would be in breach of the covenant for quiet enjoyment and susceptible to an injunction. The house is not available. One is debarred.”

With respect this is a tortuous approach, as on the facts it can be said this man had two residences, both with the attributes of “home”. “Constructive” residence arises when a person is not factually resident. In my view, the use of this approach can be misleading in deciding electoral qualifications.

I now turn to the meaning of resided for “five (5) years at any time”, by considering the development of the whole section. In the 1963 Electoral Ordinance, nomination was dependent upon being an elector and enrolled or entitled to enrol for the electorate in question. Enrolment was conditional upon having “a home in The Territory” or to have lived in the area of an electorate continuously for the last twelve months. A temporary absence of up to two years did not affect continuity of residence, (see ss 66 and 34 respectively). Entitlement to be placed on more than one roll arose from s. 38:

“(1)    Subject to this section, a person who:

(a)      lives in an electorate and has continuously so lived for at least twelve months;

(b)      has, whether before or after the commencement of this Ordinance, continuously lived in the area of an electorate for at least twelve months; or

(c)      has a home in an electorate.”

But, a person was entitled to have his name placed on one electoral roll only. Additionally, the definitions of “home” and “home electorate” contemplated the possibility of a person having more than one home but a choice for electoral purposes had to be made, see s. 38(2) and s. 38(3).

In 1967, the nomination provision (s. 66) was restricted to persons born in or who lived in the Territory for a continuous period of five years. Following the 1970 Commission of Inquiry into Electoral Procedures, the residential qualifications were tightened further. A definition of “real place of living” was introduced:

“Section 5(A)(a)       the real place of living of a person includes the place of living to which a person living temporarily elsewhere has a fixed intention of returning for the purpose of living there.”

I omit the subsection dealing with agreement workers employed under the Native Employment Ordinance 1968: the so called Highlands Labour Scheme. The nexus with enrolment was broken when a “real place of living” six months was introduced. The relevant provisions of s. 66 then read:

“66(1) No person is qualified for nomination for an electorate while he is nominated for another electorate and that last-mentioned nomination has not been withdrawn.

(2)      A person is not qualified for nomination if:

(a)      he is not an elector of the Territory;

(b)      subject to sub-s. (2A) of this section, he is not enrolled for the electorate for which he is to be nominated;...

(2A)    A person not otherwise disqualified for nomination may nominate for an electorate for which he is not enrolled if he has at any time (whether before or after the commencement of this Ordinance) had his real place of living in the area of the electorate for a continuous period of five years.”

The temporary absence period was reduced to one year.

In its Final Report, the Constitutional Planning Committee referred to the existing Electoral Ordinance and to the 1971 Inquiry:

“Previously a person otherwise qualified could be nominated for any electorate in which he had lived for one year. It was now required that he stand for election only in an electorate in which he had his ‘real place of living’ or in which he had at some time lived continuously for five years. The intention of the latter qualification was to allow a person to represent the people of an area with which he had ‘real home ties’ even though he might have lived elsewhere for some time — by reason of his employment for example. We believe that the grounds for this qualification will continue to have relevance for Papua New Guineans in the foreseeable future and recommend, therefore, that it be retained.”: see par. 15 at 6/3.

Also, there was to be no going back to the same eligibility provision for enrolment and nomination, and in the following paragraph, the discussion continues:

“We share the view, however, commonly held among our people, that a distinction should be made between the qualifications for electors and candidates: that, while six months’ residence may be appropriate for the purpose of voting, a longer period of residence is desirable for a person to be qualified to stand for election in a particular electorate — in particular, for him to get to know the area and its people. We submit that a period of two years would be more appropriate.”: par. 16.

The Constitution, s. 103(2), is the result of adoption of the:

“recommendation for residential qualification for election to the National Parliament is therefore two years continuous residence in an electorate immediately prior to nomination or a period of five years at some previous time.”: par. 17.

The 1975 Draft Hansard of the National Constituent Assembly records the resolution to adopt with these words of the then Chief Minister at 13/1/1;

“The rewording of sub-s.(2) makes it clear that:

(a)      a person born in an electorate can stand for that electorate even if that electorate is not in his ‘home’ or district; or

(b)      he has lived in that electorate for five years; or

(c)      he has lived in the electorate for two years before his nomination.”

And from this, the draftsman has phrased s. 103(2) as follows:

“A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time.”

Mr Everingham submits that based on a fair and liberal reading of s. 103(2) in accordance with the Constitution, Sch. 1.5(2), the literal reading of the section gives three widely separate alternatives with the common denominator being “real home ties”. This is an attractive argument. To import “continuous” into the third alternative makes tortuous interpretation. The only words in the second alternative relevant to the third are “have resided in the electorate”. By including the words “for a period of” in the last alternative, the draftsman has emphasised its separate and distinct character. Had he simply said “or five years at any time”, then it could be argued that “continuous period” referred to these five years as well. The phrase “at any time” was used and without qualification it is very wide. It could have been restrictive that is “at any one time” but it is not so worded.

Apart from the birth connection, it is clear that a connection greater than enrolment qualification was required. The Committee moved away from a real place of living to one of real home ties but did not recommend inclusion of the phrase. In my view, there are three alternative requirements for nomination. The continuous period of residence has been cut down but the concept of there being more than one place of residence has been maintained but with something more than mere residence being insisted upon for nomination purposes. Temporary absences have long been accepted as being no bar. Hence, the importance of the early authorities (indeed, their wording creeps into s. 5A of the former Ordinance) in arriving at an interpretation.

I will not attempt to lay down any rule by which “resided” can be construed as each case will have to be looked at on the existing facts. However, there are guide posts along the way, indicated by the facts of a case. The most prominent is that there be a degree of permanence, something more than short visits; that the residence is not a sham but one from which real home ties are either maintained or can be expected to develop through continuity; that there be a development of a sense of home — that it can be said “this is my home”. All these guides presuppose a physical presence. The easy way to achieve this is by two years continuous residence. The more difficult route is via an aggregate period of five years.

Such an approach in my view is consistent with the development of the present residential qualifications and in accord with the authorities reviewed.

I answer the questions thus:

(1)      Five years residence in aggregate, qualified by the meaning which I have placed on “resided”.

(2)      and (3) Whilst I have probably answered these questions by inference, I consider they are questions for the petition judge to decide.

AMET J: This is a reference made pursuant to s. 18 of the Constitution by the trial judge in an electoral petition. Three questions have been referred for the opinion of the Supreme Court, relating to the interpretation and application of s. 103(2) of the Constitution.

The petitioner Kevin Masive is disputing the validity of the election of the respondent Iambakey Okuk to the National Parliament in 1983 as member for the Unggai-Bena electorate. It is alleged by the petitioner that the respondent was not qualified under the Constitution, s. 103(2), to nominate for the Unggai-Bena electorate. Section 103(2) provides as follows:

“A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time.”

The issue before the trial judge has narrowed down to whether the respondent “has resided” in the Unggai-Bena electorate for a period of five years at any time.

The first question is:

“Do the words ‘... have resided in the electorate ... for a period of five (5) years at any time’ appearing in s. 103(2) of the Constitution mean:

(a)      five (5) years continuous period at any time; and/or

(b)      five (5) years composed of intermittent periods of physically residing in the electorate?”

In my opinion, the central issue evolves around the meaning to be given to the word “reside” and thus the phrase “have resided” in s. 103(2).

I am content to restate the words of Viscount Cave L.C. in Levene v. Inland Revenue Commissioners [1928] UKHL 1; [1928] A.C. 217 at 222 where he said:

“... the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a place’ “.

The word “dwell” is defined as: “make one’s abode, spend one’s time, live in, at, near on etc.”. In Words and Phrases Legally Defined, (2nd ed.), on “Reside and Residence” it says:

“It seems that the word ‘resides’ refers to a place of permanent and not merely temporary abode, although one individual may have more than one residence at the same time for the purpose of being sued.”

Stroud’s Judicial Dictionary (4th ed.) says:

“1.      ‘Residence’ signifies a man’s abode or continuance in a place.”

The English courts have over the years developed under the English electoral legislation a common law doctrine known as “constructive residence”; which is the legal term for the simple notion that “a man may have more than one residence at a time. He may be corporeally residing in one place and at the same time have a residence at another, to which he is free to go during the whole period.”: Durant v. Carter [1873] UKLawRpCP 71; (1873) L.R. 9 C.P. 261, per Keating J. at 266 and In re Moresby North East Parliamentary Election (No. 2); Goasa Damena v. Patterson Lowa [1977] P.N.G.L.R. 448, at 453. In Ford v. Pye [1873] UKLawRpCP 72; (1873) L.R. 9 C.P. 269 it was held:

“The mere fact of absence, as long as there is liberty of returning, and no abandonment of the intention to return whenever the person pleases, will not prevent there being constructive residence; but if the person has deprived himself of the liberty of returning by letting the premises, or has abandoned the intention of returning,... he cannot be said to have been residing.”

In Ford v. Hart [1873] UKLawRpCP 73; (1873) L.R. 9 C.P. 273, Brett J. said:

“To constitute constructive residence, the claimant must have the liberty of returning and also the intention of returning whenever he pleases.”

In Tanner v. Carter (1885) 16 Q.B. 231, Cave J. said at 237:

“Undoubtedly there have been cases, in which it has been held that there may be a constructive as distinct from an actual occupation of a dwelling-house. But when these cases are examined, it will be found that the person held to be constructively resident in a house was always entitled to return to it without requiring the consent of any other person.”

In Halsbury’s Laws of England, (3rd ed., 1956), vol. 14, the doctrine is encapsulated thus:

“In order to constitute residence, a party must possess at the least a sleeping apartment, but that an uninterrupted abiding at such dwelling is not requisite. Absence, no matter how long, if there be the liberty of returning at any time, and no abandonment of the intention to return whenever it may suit the party’s pleasure or convenience so to do, will not prevent a constructive legal residence. But, if he has debarred himself of the liberty of returning to such dwelling, by letting it for a period, however short, or he has abandoned his intention of returning, he cannot any longer be said to have even a legal residence there.”

In Powell v. Guest (1864) C.B.N.S. 72, Erle C.J. said:

“Judges who have from time to time had to decide upon the meaning of ‘residence’ in different statutes, have been obliged to resort to various shifting meanings of the word, according to the object and intention of the legislature in the particular statute in which it is used.”

More recently in Fox v. Stirk and Bristol Electoral Registration Officer [1970] 2 Q.B. 463, the court held that the word “residence” has no technical or special meaning but in its ordinary sense implies a degree of permanence. The context of this case was different from the earlier decisions in that the Representation of the People Act 1949 provided for residence on a qualifying date rather than a qualifying period. It was held that not only were the appellants factually resident in the particular constituency on the qualifying date as required, but there was also that sufficient degree of permanence and expectation of continuity attaching to their residence to turn simple occupation into residence.

Though that Act provided for residence on a qualifying date rather than a qualifying period, the principles are equally applicable to construction of residence over a qualifying period, and I propose to refer to relevant passages.

Lord Denning M.R. at 475 said:

“I prefer to go by the ordinary meaning of the word ‘resident’. I follow Viscount Cave L.C. in Levene v. Inland Revenue Commissioners (supra),”

and cited the passage I have quoted above; and added:

“I would also take into account, as the statute says, the general principles formerly applied and have regard to the purpose and other circumstances of his presence at or absence from the address. Here I derive three principles. The first is that a man can have two residences. He can have a flat in London and a house in the country. He is resident in both. The second principle is that temporary presence at an address does not make a man resident there. A guest who comes for the weekend is not resident. A short-stay visitor is not resident. The third principle is that temporary absence does not deprive a person of his residence. If he happens to be away for a holiday or away for the weekend or in hospital, he does not lose his residence on that account. ... I think that a person may properly be said to be ‘resident’ in a place when his stay there has a considerable degree of permanence.”

Widgery L.J. at 477 said:

“There are other references to a man’s home, references which I find helpful, because, although I recognise that the word is in some ways an ambiguous word, I think it nevertheless follows that a man cannot be said to reside in a particular place unless in the ordinary sense of the word one can say that for the time being he is making his home in that place. ... Indeed, this conception of residence is of the place where a man is based or where he continues to live, the place where he sleeps and shelters and has his home. It is imperative to remember in this context that ‘residence’ implies a degree of permanence. In the words of the Oxford Dictionary, it is concerned with something which will go on for a considerable time. Consequently a person is not entitled to claim to be a resident at a given town merely because he pays a short, temporary visit. Some assumption of permanence, some degree of continuity, is a vital factor which turns simple occupation into residence.”

The doctrine of constructive residence was adopted and applied by Frost C.J. in the first case on residential qualification under this section of the Constitution in this jurisdiction, in In re Moresby North East Parliamentary Election (No. 2); Goasa Damena v. Patterson Lowa. Patterson Lowa had won the elections for the Moresby North East electorate in the 1977 general elections for the National Parliament. He had relied on residence for a continuous period of two years immediately preceding nomination as his qualification for nomination. The petitioner Goasa Damena disputed this.

Patterson Lowa was a colonel in the Defence Forces and lived in married accommodation at Murray Barracks. In August 1975 he resigned from the Defence Forces. On 1 September 1975, he left the accommodation at Murray Barracks and went to live in Lae. He returned to Port Moresby in January 1976, and lived in Gordons. Since 1973, he and his wife had owned a house in Boroko. Except for a period of one week in 1975, when the Lowas had occupied the house for the purpose of maintenance, it had at all times been occupied by tenants. In 1977 the electoral boundaries were redistributed, placing Murray Barracks in the Moresby North West electorate and Gordons and Boroko in the Moresby North East electorate. It was clearly established on the facts that Patterson Lowa had not in fact physically resided within Moresby North East electorate for a continuous period of two years immediately preceding nominations. It was thus sought to rely on “constructive residence” of the home in Boroko.

The learned Frost C.J., after referring to the authorities above referred to, said this at 454:

“It is plain that constructive residence implies an available residence, from which the claimant has not debarred himself from the liberty of returning.

There is no reason to suppose that the doctrine is not suitable or appropriate to the circumstances of Papua New Guinea, and accordingly it is applicable in determining the operation of the residential qualifications under the Constitution s. 103.”

It was concluded that because Patterson Lowa had at all times owned the house as an investment and let it to tenants he was not at liberty to return to it at will and had no intention of living in the house at any time. He was therefore not constructively resident in the house.

In the second case of Dixon Daduwe v. Joe Area [1979] P.N.G.L.R. 160, the petitioner had claimed entitlement to enrol under s. 11(3)(a) of the Constitution of the Milne Bay Provincial Government which provides:

“(3)    A candidate for election to the Assembly must have lived in the area comprised in the electorate for which he intends to stand:

(a)      for the two consecutive years immediately before the closing date for nominations for the election in which he intends to stand.”

The petitioner’s nomination was rejected on the basis that he did not have the necessary residential qualifications required by s. 11(3) of the Provincial Constitution.

Raine Dep. C.J. held, following Goasa Damena v. Patterson Lowa, that the petitioner, who owned a house within the area comprised in the electorate built for himself and his mother in his mother’s village on her being widowed in 1972, and who from 1973 worked at schools outside the electorate area returning to his house during holidays and on weekends, could be said to have an available residence from which he had not debarred himself from returning by reason of his employment.

It was found on the facts on the balance of probabilities that the petitioner had not established that his request for nomination as a candidate had been made as required and so the petition was dismissed.

On the issue of constructive residence Raine Dep. C.J. said at 168:

“But it is clear to me that it will always be a question of mixed fact and law, and even more so, in this land, where the ties between a man and his village and its people are immensely strong. ...

In my opinion it is easy to apply the ‘constructive’ residence principle to the facts of this case, and many others in this country. In my opinion the home in his mother’s village was ‘available’ and the petitioner was not ‘debarred’ from it by reason of his employment.”

I refer to the Final Report of the Constitutional Planning Committee, 1974 Part 1 (the Committee) and its recommendations on residential qualifications, as an aid to the interpretation of s. 103(2), as permitted by the Constitution, s. 24, and to determine whether the added construction given s. 103(2) on the basis of constructive residence is permissible or consistent with the rationale behind those recommendations by the Committee.

The Committee noted at 6/3 pars 15-17 that there was some tightening up of residential qualification provisions in the Electoral Ordinance 1963 following a Commission of Inquiry into Electoral Procedures in 1970. Previously a person otherwise qualified could be nominated for any electorate in which he had lived for one year. Following amendment to the Electoral Ordinance in 1971, largely in accordance with the Commission of Inquiry recommendations, it was now required that he stand for election only in an electorate in which he had his “real place of living” or “in which he had at some time lived continuously for five years”. (Emphasis mine.) The Committee said:

“The intention of the latter qualification was to allow a person to represent the people of an area with which he had ‘real home ties’ even though he might have lived elsewhere for some time — by reason of his employment, for example. We believe that the grounds for this qualification will continue to have relevance for Papua New Guineans in the foreseeable future and recommend, therefore, that it be retained.” (Emphasis mine.)

In relation to the alternate residential qualification period, the Committee said:

“... while six months residence may be appropriate for the purpose of voting, a longer period of residence is desirable for a person to be qualified to stand for election in a particular electorate — in particular, for him to get to know the area and its people. We submit that a period of two years would be more appropriate.” (Emphasis mine.)

The Committee thus recommended that “residential qualifications for election to the National Parliament is therefore two years continuous residence in an electorate immediately prior to nomination or a period of five years at some previous time”.

Several observations can be made of these comments of the Committee. First, the alternative qualification for eligibility to nominate for an electorate, was for the candidate to have, at some time, lived continuously for five years in the electorate. Secondly, the Committee considered the intention of this qualification was to allow a person to represent the people of an area with which he had “real home ties”. And thirdly, the Committee believed the basis for this qualification continued to have relevance for Papua New Guineans. However, the Committee deleted the use of the words “lived continuously” in its recommendation.

In relation to the recommendation for two years continuous residence immediately prior to nomination, the Committee considered this would enable the candidate “to get to know the area and its people”.

From these observations I am of the opinion that the thrust of the Committee’s recommendation was that in order for a person to qualify to represent people of a particular area or electorate, that person must have physically lived in the area or electorate for a continuous period of two years immediately preceding his nomination or have physically lived in the area or electorate for an aggregate period of five years at any time. This would thus enable the candidate to get to know the area and its people and to represent the people with whom he had “real home ties”. The Committee believed that the necessity for an intending candidate to know the area and the people and to have developed “real home ties” continued to have relevance to Papua New Guineans today.

This being my view of the fundamental basis for the recommendations of the Constitutional Planning Committee, I must, with much respect and deference to the former Chief Justice and Deputy Chief Justice, disagree with their opinions as to the suitability and appropriateness of the doctrine of constructive residence in Papua New Guinea at this present time. In my opinion this doctrine is not applicable or appropriate to the circumstances of Papua New Guinea at the present time. It is true that in Papua New Guinea customary and extended family “ties between a man and his village and its people are immensely strong.” This is particularly true in relation to the area and people amongst whom the man was born; no issue arises there, or if he where born somewhere else but grew up and lived in his father’s village all his adult life. The same is not true for the extreme situation I have given as an example below nor is it in urban centres away from the traditional village, nor might I add is it, in relation to another village and customary setting away from one’s own traditional village and people. In relation to this latter situation “home ties” have to be established and developed in the same manner as interpreted. The doctrine is therefore inconsistent with the interpretation I have given to word “reside” and thus “have resided”. Additionally, for the reasons advanced I am of the opinion that it is not applicable or appropriate to the circumstances of Papua New Guinea at the present time.

If it is accepted that the basic premise, for aspiring to elective political or public office, is to represent the interest and welfare of those represented, then in my opinion the doctrine of constructive residence is not appropriate to determine residential qualification for political representation in Papua New Guinea at the present time. In my view Papua New Guineans generally would expect their political representative to have lived amongst them and to know the people and the area. How can he realistically and meaningfully represent their interests if he does not know the people and the area? Taking the doctrine to its extreme, a man can have a house in an electorate for ten years, which is being looked after by a caretaker and he is at liberty to go to it at any time. He has never gone to the house or lived in it at any time. Under the doctrine he is deemed to be resident in that house and electorate. Or let us assume that he has over the ten years used it as a weekend retreat on weekends and holidays. He is deemed to be resident in the house and the electorate. He comes from another area altogether and does not know the people or the area, but he is qualified to nominate for election to represent them. Can this person be said to have acquired or developed “real home ties”? Can he meaningfully represent the interests and welfare of these people? I do not believe, under this doctrine, such a person can realistically have acquired these ties and interests.

I am of the opinion that it is of the essence of the Committee’s recommendation that an intending candidate must have physically lived in the electorate to have enabled him to know the people and the area and to have developed home ties sufficient to represent the interest and welfare of the people he seeks to represent.

I am of the opinion therefore that the interpretation to be given to the word “reside”, consistent with the basis discussed, is to “physically live permanently or for a considerable time in, or at a particular place”. Thus, the phrase “have resided” in s. 103(2) should be construed to mean “have physically lived permanently or for a considerable time”!

Turning now to the first question, I agree that the grammatical construction of s. 103(2) does not permit the importation of the word “continuous” into the phrase “for a period of five years at any time”. It only qualifies the “period of two years immediately preceding his nomination” and not the period of five years. The period of five years at any time need not be a continuous period. It may be a continuous period or an aggregate of intermittent periods, both of which must be of physically living in the electorate.

The principles espoused in the construction of residence in Fox v. Stirk are useful in the determination of these periods. For instance, temporary absence on weekends, or holidays, hospital or business trip does not deprive one of the continuity of his physical living, nor of the continuity of a particular intermittent period. The intermittent periods on the other hand need to have a sufficient or considerable degree of permanence and an expectation of continuity. Temporary presence for the weekend, recreation leave or a short holiday stay does not have sufficient degree of permanence or expectation of continuity to count towards aggregation of intermittent periods for the purpose of “a period of five years at any time”.

I would therefore answer question 1 this way:

“Aggregate period of five (5) years composed of intermittent periods of physically living in the electorate;

And it may also be a continuous period of five (5) years of physically living in the electorate.”

Question 2 is clearly a question for determination by the trial judge on his determination of the issues of facts before him, bound by the opinion of this Court on the construction of s. 103(2).

Question 3 in my view does not raise the question of interpretation of a constitutional provision so I do not propose to answer it.

Questions answered accordingly.

Lawyers for the petitioner: Donigi, Reiner & Co.

Lawyer for the respondent: D. Awaita.

Lawyer for the Electoral Commission: T. Konilio, Secretary for Justice.

[Editorial Note: On 6 December 1984, Woods J. delivered judgment in the matter of the disputed election petition between Kevin Masive v. Iambakey Okuk in which after referring to the terms of the judgment above he found as follows:

6 DECEMBER 1984

WOODS J:  In applying this to the facts as found by me in this case, and I refer here to the finding of facts in the reference dated 25 July 1984, it is quite clear that merely having a place available in Unggai-Bena which was visited occasionally mainly for holidays did not in 1983 satisfy the requirement of residence in s. 103(2) of the Constitution where the respondent clearly had a home in Port Moresby which he resided in much of the time by reason of his position at various times since 1972 as a Government Minister and Deputy Prime Minister and also clearly had a home in Chimbu by virtue of the fact that he was the Regional Member from 1972 to 1982 and had business interests there.

I therefore, pursuant to s. 212 of the Organic Law on National Elections, declare the election for the Unggai-Bena Open Electorate in 1983 absolutely void.

A new election will have to be held.

I order that the sum of K200 paid by the petitioner as security for costs be repaid to him.

In accordance with s. 221 of the Organic Law a copy of the order of the court will be forwarded to the Clerk of Parliament.]

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